Efforts intensify in Michigan to protect elderly, vulnerable adults

Submitted photo
Macomb County Prosecutor Eric Smith talks about elder abuse at the March kickoff of the “No Excuse for Elder Abuse” by Area Agency on Aging 1B” at Michigan First Credit Union in Lathrup Village.

Elder and vulnerable adult abuse in recent years was like child abuse in the 1960s, says Macomb County elder advocate Marty Prehn.

It wasn’t talked about. It was kept in the family.

But that is changing, as elder advocates in Michigan have instituted a slew of laws and initiated programs to create awareness and protect elderly and vulnerable adults, over the past year.

“It’s been a long time coming,” said Rhonda Powell, former director of the Macomb County Senior Citizen Services Department and now deputy director of the state Office of Services on Aging. “There hasn’t been this big of a movement to protect elders in a long time. Unfortunately we’ve arrived at a point in time where these safeguards are needed.”

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Consider:

• Fifteen state laws or amendments regarding vulnerable adults have taken effect since May 2012.

• The Southfield-based Area Agency on Aging 1-B this year started a campaign, “No Excuse for Elder Abuse.”

• The state Prosecuting Attorneys Association of Michigan in October started the Michigan Elder Justice and At-Risk Adults Project and Thursday conducted its inaugural summit in Grand Blanc, attended by more than 300 people including international elder abuse expert Laura Mosqueda.

• State Human Services Director Maura Corrigan at the summit released the Michigan Model Vulnerable Adult Protocol, Neglect and Exploitation of Vulnerable Adults. The new protocol becomes the standard for the joint investigation of vulnerable adult abuse, neglect and exploitation statewide.

Saturday was World Elder Abuse Awareness Day and last week was Michigan Elder and Vulnerable Adult Abuse Awareness Week.

The first laws for criminal physical abuse or financial exploitation of vulnerable adults were passed more than a dozen years ago. The new laws and efforts are attempting to combat a “tsunami” of financial and physical abuse against vulnerable and elderly adults, said Catherine Emerson, elder justice resource assistant prosecutor for the Prosecuting Attorneys Association of Michigan.

“It’s disgustingly gross. It’s disgustingly sad,” she said.

“It’s an epidemic,” said Troy-based elder law attorney Andrew Mayoras.

In 2012, Adult Protective Services departments statewide received 25,000 referrals alleging abuse, neglect or exploitation, and referrals are expected to top 30,000 this year, according to DHS. Those figures exclude complaints to law enforcement and others.

APS investigates and tries to correct a situation via making services available for the affected adult, and can refer it to law enforcement for further action.

The state defines a vulnerable adult as someone over 18 who is “unable to protect himself or herself from abuse, neglect, or exploitation because of a mental or physical impairment or advanced age.”

A 2009 study by MetLife Mature Market Institute said financial abuse of elders costs “at least $2.6 billion” per year nationally. Other studies show abuse is prevalent.

Advocates blame increases in vulnerable adult abuse on what Clinton Township resident Powell called, “The Perfect Storm” — an aging population intersecting with the economic recession of recent years. That put many people in financially desperate situations in which they exploited or abused a vulnerable parent, grandparent, aunt or uncle, or family friend, or someone they care for.

James Simasko, a Mount Clemens-based elder law attorney, said he noticed increased abuse, often physical.

“I’m seeing it more and more because of increased pressures within the family unit,” he said. “When there’s pressure, the stress levels go through the roof and there’s abuse.”

With the first baby boomers turning 67 this year, elder abuse could potentially increase dramatically over the coming years. In Michigan, there were 1.2 million people aged 65 and older, according to the U.S. Census. That is projected to increase to 2.1 million people in 2030.

Nationally, the 2010 census indicated the highest number of people and proportion of people 65 and older ever, 40.3 million, 13 percent of the population, according to the National Center on Elder Abuse. By 2050, those aged 65 and older will constitute 20 percent of the population.

The fastest growing segment of the U.S. population is age 85 and older, 5.8 million in 2010, according to the Census. That is projected to rise to 19 million by 2050.

The victim typically knows the abuser, the MetLife study says.

“The perpetrators of financial abuse are typically not strangers and most are people who have the trust of the older individual,” the study says.

Abuse can come in the form of physical, mental or sexual abuse, exploitation, neglect, self-neglect, confinement, intimidation, abandonment, misuse of medication and isolation.

In Macomb County, assistant prosecutor Suzanne Faunce said although many cases go unreported, she has seen the number of criminal cases involving senior victims increase by 15 to 20 percent per year since 2008 when she was named chief of the senior crimes unit, created by Prosecutor Eric Smith in 2005. She said last week she is working on 75 cases, although her caseload includes seniors who are not vulnerable.

On top of more instances, she attributed her bigger caseload to heightened reporting by victims. In the past, many victims were embarrassed to report being exploited or don’t think the actions were criminal. But that has been changing due to greater awareness, she said.

“Now they’re starting to say, ‘I’m not embarrassed. It’s not just me. This is a crime.’ There’s nothing to be ashamed of,” she said.

Attorney Mayoras, who along with his wife, Danielle, penned the book, “Trial & Heirs: Famous Fortune Fights,” said he has seen “hundreds” of cases in which a family member or caregiver took advantage of a vulnerable adult.

“When the economy started to go down, I started to see an increase of instances of people financially exploiting seniors out of desperation or greed,” he said. “A senior citizen with money can be a tempting mark, even by a family member. It will turn your stomach to see some of the things I’ve seen.”

The most common financial abuse involves an elderly person with dementia being convinced to change a will or trust, or to add the perpetrator’s name to a bank account, attorneys said.

“If they get their PIN, they’ve got their money,” Emerson said.

But Mayoras said culprits use many methods. “Exploitation comes in all shapes and sizes. People don’t think they’re going to get caught. How can you prove someone didn’t want to sign something? It’s very difficult.”

In all of his financial cases, Mayoras said he has pursued the matter for the client in civil probate or circuit court, bringing mixed results.

“We try to correct the problem civilly so the money can be returned, but it’s not easy,” he said. “Sometimes the money is gone and you can’t get it back.”

He occasionally has discussed a criminal case with police or a prosecutor’s office, but it never has developed into criminal charges.

“Prosecutors are reluctant to get involved. There has to be a very large amount of money or a smoking gun,” he said. “But this isn’t like a rape or a murder and there’s DNA evidence.”

Elder advocate Prehn said law enforcement officials need to be better versed in that elder abuse or neglect can be criminal.

To help review potential abuse for potential charges, death review task forces are being formed in Michigan, with at least two currently in existence, said Emerson, who sits on a tri-county panel in the greater Lansing area. Macomb County officials are forming a task force, assistant prosecutor Faunce said.

Investigators can review bruising and other injuries, and medical conditions.

Faunce has gained many criminal convictions, including some high profile cases. One of the biggest was last year’s conviction of Brian Marsack, who pilfered the life savings of a Harrison Township man, and the victim’s wife, sister and sister-in-law, aged 78 to 92. Marsack was sentenced in October by a Macomb County judge to 45 months in prison after pleading no contest to three counts of embezzlement over $100,000.

Marsack, now 45, formerly of Chesterfield Township, had known the victim since he was a boy.

Laws addressing vulnerable adults hadn’t changed or been supplemented until last year, when a package of a dozen bills passed. Another three have taken effect this year.

Faunce pointed to one that took effect May 21 that provides for consecutive sentencing of someone convicted of multiple charges or counts of financial exploitation.

“It’s huge,” she said. “The new law is very exciting.”

Under concurrent sentencing, someone convicted of multiple counts or charges must be sentenced to simultaneous terms. Under consecutive sentencing, the judge can stack the terms. Faunce expects more prison terms to result.

“The guidelines have been so much lower than I’d like to see,” she said. “I don’t like to have to tell someone who had their whole life savings stolen that the sentencing guideline range is zero to 12 months. They (criminals) steal people’s security, their way of living.”

The stiffened punishement option is on top of Prosecutor Smith’s policy of no plea deals for those who prey on vulnerable adults, Faunce said.

Other amendments and new laws, according to state of Michigan documentation provided by Emerson, include:

• Creating higher categories and prison terms for financial exploitation, with levels added for embezzlement between $50,000 and $100,000, a 15-year felony, and more than $100,000, a 20-year felony. Previously, the highest category was more than $20,000, a 10-year felony.

• Eliminating the requirement to convict a person of both first- and second-degree vulnerable adult abuse to gain a felony murder conviction.

• Creating the protocol that was announced by Corrigan on Thursday.

• Preventing convicted abusers from inheriting from their victim.

• Allowing for creation of elder death review teams in individual or groups of counties.

• Prohibiting a magistrate from requiring a vulnerable adult to “personally affirm” a criminal complaint.

• Requiring a vulnerable adult’s guardian or conservator to report the value of a person’s asset that is “readily convertible into cash” and obtain a bond if the value exceeds a certain limit.

• Preventing a conservator from mortgaging, pledging or allowing a lien to be placed on a protected individual’s property without a court order.

• Requiring nursing home employees to report suspected abuse directly to the DHS and their administrator, and the administrator to report to the DHS and law enforcement.

• Establishing several limits for a person given a durable power of attorney.

• Creating 33 rights for a person under a conservator or guardian, and requiring the State Court Administrative Office and Office of Services to the Aging to create a form to advise notice of those rights.

• Providing some protections to vulnerable adults in some court cases.

• Mandating those who sell annuities to complete a training course, obtain necessary information from the buyer, ensure there is a “reasonable basis” for the annuity and develop a review process to ensure the annuity is suitable.

Despite all the new laws, attorneys worry that funding won’t be provided to back them.

“It’s nice that the laws are there to protect them but the funding isn’t there,” Simasko said. “It’s one thing to make the laws tougher, it’s another to have programs to get to the root of the problem.”

Mayoras said law enforcement officials don’t have the resources to pursue the cases.

“There’s just not enough police and prosecutor resources to build a case,” he said. “It’s very document and labor intensive. The laws are great, but if you’re unable to enforce them, what are you going to do? That’s the sad reality.”

But officials said they hope for increased enforcement with the help of awareness and the new procedures, the Michigan Model Vulnerable Adult Protocol.

State officials hope the protocol will allow communities to customize and adapt it. It allows APS workers to take photographs during their investigation with the consent of the client. The goal will be to increase communication between law enforcement and APS in reviewing a scenario for criminal activity.

“Prior to this protocol, the law mandated that Adult Protective Services investigate and give its report to the prosecutor, not necessarily to law enforcement, and vice versa,” Corrigan said in a prepared statement. “Now, we have streamlined the process, and will share information from the beginning in these cases. That’s a great start toward helping safeguard this vulnerable population.”

PAAM will provide training to police, prosecutors, APS workers and others on the new protocol.

Mayoras advised loved ones of vulnerable or elderly adults to be proactive in the person’s affairs.

“The No. 1 rule is to get involved,” he said. “Help them go over their bank statements, make sure they understand. You can stop a minor problem before it becomes a major problem.”

Problems can be avoided by patronizing an estate attorney to avoid Probate Court, Mayoras noted.

Anyone who suspects exploitation or abuse of a vulnerable or elderly adult can contact one of the following agencies:

Michigan Adult Protective Services: 855-444-3911.

Area Agency on Aging 1B (metro Detroit): 800-852-7795.

For more details on the No Excuse for Elder Abuse campaign in Michigan, visit the Facebook page of the same name.

About the Author

My beat is the courts of Macomb County and general assignment.
Read more of Jameson Cook's court coverage on his blog http://courthousedish.blogspot.com/ Reach the author at jamie.cook@macombdaily.com
or follow Jameson on Twitter: @jamesoncook.